In Aleman v. AirTouch Cellar, Case No. B231142 (2d Dist., Div. 2 Dec. 21, 2011) (certified for publication), employer prevailed on split shift and reporting time pay claims brought by two employees, with the lower court awarding employer attorney's fees recoveries against one employee in the amount of $146,000 and against the other in the amount of $140,000. The theory was that employer had fee entitlement under Labor Code section 218.5 as the prevailing party (under a bilateral fee-shifting provision).

Wrong, said the appellate court, although the issues were of first impression and not quite clear cut. The split shift and reporting time pay claims, for fee recovery purposes, were encompassed instead by Labor Code section 1194, a pro-plaintiff only fee-shifting provision because the claims were compensation issues serving a dual function of compensating employees and enforcing employer compliance with the requirements. The fee recoveries against employees were reversed, helping greatly the pocketbooks of the losing employees. (Incidentally, the costs awards in favor of employer were affirmed, given that the fee-shifting provision did not impact recovery of routine costs.)